8THKIIT INTRA MOOT COURT

COMPETITION2016

TC-856

W.P No____of 2016

BEFORE

THE HONBLE HIGH COURT OF BORISSA

IN THE MATTER BETWEEN

ALL BORISSA AD-HOC PRIMARY TEACHERS ASSOCIATION

(PETITIONER)
v.

STATE

(RESPONDENT)
To,
THE HONBLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF HIGH COURT OF
BORISSA

~ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT~

~MEMORANDUM ON BEHALF OF THE PETITIONER~

8TH KIIT INTRA MOOT COURT COMPETITION 2016

MEMORIAL FOR PETITIONER

TABLEOF CONTENTS
ABBREVIATION ................................................................................................................................. 1
INDEXOF AUTHORITIES ................................................................................................................. 2

CASES................................................................................................................................................ 2
PRIMARY AUTHORITIES: ........................................................................................................... 3

WEB REFERENCES: ...................................................................................................................... 3

CONSTITUTION AND STATUTES: ............................................................................................. 3

STATEMENTOF JURISDICTION .................................................................................................... 4

STATEMENTS OF FACTS................................................................................................................. 5

STATEMENT OF ISSUES .................................................................................................................. 6

SUMMARYOF ARGUMENTS ........................................................................................................... 7
ARGUMENTS ADVANCED ................................................................................................................ I
I.

A.
B.
C.

II.

A.
B.
C.

IV.

A.
B.

THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH COURT.... I

This Hon'ble Court has an obligation to entertain the instant petition ................................ I
Writ petition is maintainable when there is infringement of fundamental rights ............... II

The writ is independent of the existing alternative remedies .............................................. III

THE POWER UNDER S. 144 OF CR.P.C HAS BEEN MISUSED ................................ IV

S. 144 of Crpc applies to cases of nuisance and apprehended dangers .............................. IV

The use of police force amounts to arbitrary action protected by Art. 14 of the constitution
V
There Has Been Violation of Fundamental Right Under Art. 21 Of The Constitution ...... V
THE DEFENDANT IS LIABLE FOR THE COMPENSATION.................................... VI

Compensation must be provided, if there is violation of fundamental rights ..................... VI

The Petitioner is liable under the common law principle of vicarious liability ................. VII

PRAYER ................................................................................................................................................ IX

8TH KIIT INTRA MOOT COURT COMPETITION 2016

MEMORIAL FOR PETITIONER

ABBREVIATION
ABBREVIATION

TERM

S.

Section

&

And

Paragraph

ACJ

Amended Consent Judgement

Art.

Article

AIR

All India Reporter

Cr.PC

Code of Criminal Procedure

Hon'ble

Honourable

Ed.

Edition

H.P.

Himachal Pradesh

I.P.C.

Indian Penal Code

M.P.

Madhya Pradesh

SC

Supreme Court

Ltd.

Limited

Ors.

SCC

Others

Supreme Court Cases

SCR

Supreme Court Reports

U.P.

Uttar Pradesh

U.O.I.

Union of India

V.

Versus

WP

Writ Petition

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INDEXOF AUTHORITIES
CASES

01. A S Mittal v. State of Uttar Pradesh (1989) 3 SCC 223

02. Alok Mittal And Ors. v. Government of Haryana And Ors. 2008 (98)
03. Bannari Amman Sugars Ltd. v. C. T. O. (2005) 6 SCC625
04. Consumer Education and Research Centre v. UOI, (1995) SCC 42
05. Gulam Abbas v. State of U.P (1982) 1 SCC 71
06. Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property AIR 1954 MB 173
07. Himmatlal v. State of M.P. (1954) SCR 1122
08. In Re: Ramlila Maidan Incident Dt. 4/5. 06.2011 v. Home Secretary & Ors. (2012)
5 SCC 1
09. K. Thiagarajan @ Thozhar Thaigu v. The Commissioner Of Police W.P No. 26930
of 2013
10. Khatri v. State of Bihar (1981) 1 SCC 627
11. M. Kasirajan v. The District Collector W.P.(MD) No.12973 of 2013
12. Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors,
(1992) SCR (1) 616
13. Nilabati Behera v State of Orissa & Ors. (1993) SCR (2) 581
14. Praveen Bhai Thogadia v. State of Karnataka (2003) Kant LJ 48
15. Premoda Medhi v. Gauhati Roller Flour Mills Ltd, (2003) 1 Gau LR 205
16. Ramana Dayaram Shetty v. The International Airport Authority of India Ors. AIR
1979 SC 1628.
17. Rudul Shah v State of Bihar (1983) 4 SCC 141
18. S. G. Jaisinghani v. Union Of India And Ors. AIR 1967 SC 1427
19. Sant Bir v. State of Bihar (1982) 3 SCC 131
20. Shivram Poddar v. ITO AIR 1964 SC 1095
21. Som Raj v. State of Haryana AIR 1990 SC 1176
22. State of Rajasthan v. Vidhyawati AIR 1962 SC 933
23. The Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors. (2000) 2
SCC 465
24. . Udai Bhan Singh v. State of U.P. & Ors. AIR 1974 All 202
25. Union of India v. Bajaj Tempo Ltd. (1998) 9 SCC 281

26. Union of India v. Hidalco Industries (2003) 5 SCC 194 (198)

27. Veena Sethi v. state of Bihar (1982) 2 SCC 583
28. Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 (11).
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PRIMARY AUTHORITIES:
1. D.D BASU, COMMENTARY ON CONSTITUTIONAL LAW OF INDIA, VOLUME
2.
2. V.N SHUKLAS CONSTITUTION OF INDIA, MAHENDRA P. SINGH, 326
(12TH EDITION 2013)
WEB REFERENCES:
1.

WWW.HEINONLINE.ORG (HEINONLINE)

3.

WWW.JUDIS.NIC.IN (SUPREME COURT OF INDIA OFFICIAL)

2.
4.
5.
6.

WWW.JSTOR.ORG (JSTOR)

WWW.MANUPATRAFAST.COM (MANUPATRA)
WWW.SCCONLINE.CO.IN (SCC ONLINE)

WWW.WESTLAWINDIA.COM (WESTLAW INDIA)

CONSTITUTION AND STATUTES:

1. CONSTITUTION OF INDIA, 1950.

2. CIVIL PROCEDURE CODE, 1908.

3. CODE OF CRIMINAL PROCEDURE, 1973.

JOURNAL

1. HALSBURYS LAWS OF INDIA, ADMINISTRATIVE LAW, LEXISNEXIS

BUTTERWORTHS, VOLUME 1, 2008.
2. HALSBURYS LAWS OF INDIA, TORTS, BUTTERWORTHS, VOLUME 29(1), 2008.

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STATEMENTOF JURISDICTION
That as the Municipal laws of Borissa is in pari materia to the Laws of India hence, the
Petitioner has appeared before the Honble High Court of Borissa under Art.226 of the
Constitution of India,1950 by preferring this instant Writ Petition on behalf of the ABAPTA
and this Honble Court has ample jurisdiction to entertain the instant subject-matter.

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STATEMENTS OF FACTS

All Borissa Ad-hoc Primary Teachers Association (ABAPTA), is a society registered

under Society Registration Act. In 2015, they raised the issue of regularization of 1500
such ad-hoc teachers. They sought permission from the Police Commissioner of Borissa

for organizing a relay hunger strike near State Assembly demanding for the same for

which the police authorities granted a conditional no objection certificate.

On end from 5th October 2015, the ABAPTA went for a relay hunger strike, resulting in

agitation. On 9th October, the Leader of the Opposition (political party), seizing the

opportunity came before the dharna place and mobilized the protesting teachers against

the ruling government.

After this, the Government withdrew the permission and a prohibitory order was imposed

under Section 144 of Cr.P.C 1973. The Police Commissioner next day, came before the

agitating teachers and tried to convince the leaders and the sitting teachers to withdraw

the hunger strike but failed in doing so.

There was a police crackdown at night on 10th October, 2015 asking the agitating

teachers to leave the place at midnight itself. However, the police evicted the sleeping
persons forcibly by caning and use of tear gas which resulted injuries to various agitating

teachers present then and there.

The ABAPTA decided to file a writ petition in High Court of Borissa claiming

compensation and damages against the Government of Borissa under Article 300 (1) of
the Constitution of India, 1950 under common law principle of vicarious liability. The

Government of Borissa defended the case by pleading sovereign immunity and claimed
doctrine of contributory negligence.

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STATEMENT OF ISSUES
ISSUE I
WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?

ISSUE II
WHETHER THE POWER UNDER S. 144 OF CRPC HAS BEEN MISUSED?

ISSUE III
WHETHER THE DEFENDANT IS LIABLE FOR COMPENSATION TO THE
PETITIONER?

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SUMMARYOF ARGUMENTS
I.

THE

WRIT

PETITION

MAINTAINABLE.

FILED

BEFORE

THE

HIGH

COURT

IS

It is humbly submitted that the writ petition filed by the petitioner is maintainable.

Firstly, there is a Constitutional obligation on the Court to protect fundamental rights.

Secondly, fundamental rights were infringed under Article 14, 19 and 21 and therefore
the writ will be maintainable on this regard. Thirdly, the existence of an efficacious

alternative remedy by filing money suit in civil court would not oust the Petitioner from
filing the writ petition as fundamental rights have been infringed.
II.

THE POWER UNDER S. 144 OF CRPC HAS BEEN MISUSED.

It is humbly submitted that S. 144 is to be applied in cases where there is imminent threat

to security or there is a need for speedy remedy. Firstly, it is settled law that the order
issued under section 144 must prescribe the material facts and cannot be used for dangers
which are foreseeable, but only in cases of imminent dangers. Secondly, the use of police

force amounts to arbitrary action protected by Article 14 of the Constitution. Thirdly, it

amounts to violation of a fundamental right under Article 21 of the Indian Constitution.
III.

THE DEFENDANT IS LIABLE FOR COMPENSATION TO THE PETITIONER

The defendant is liable for compensation to the Petitioner. Firstly, there has been
violation of fundamental right under Art. 14, 19 (1) (a), (b) &Art. 21. When a person's

fundamental right is infringed, he has a public law remedy of seeking compensation from
the state and this public law remedy is in addition to private law remedy by way of a civil

suit for damages. Secondly, the petitioner is also liable under the principle of vicarious
liability.

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ARGUMENTS ADVANCED
I. THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH
COURT
(1.) The writ petition filed by the Petitioner is maintainable, as this Hon'ble Court has a
constitutional duty to entertain the instant petition [A].Further, there is infringement of
fundamental rights [B] and it is independent of any alternative remedy [C].

A. This Hon'ble Court has an obligation to entertain the instant petition

(2.) The courts have the obligation to satisfy the social aspirations of the citizens because the
courts and the law are for the people and expected to respond to their aspirations.1 It is well
settled that Article 226 confers a discretionary power on the High Courts to make or issue

appropriate orders and writs for the enforcement of any of the rights conferred by Part III of
the Constitution or for any other purpose.2

(3.) The petitioner is a society registered under Society Registration Act, which confers

them a legal personality within the jurisdiction of state. Whenever there is infringement of a

fundamental right, no question of delay arises for consideration. 3 Article 226 does not
describe the persons who are entitled to enforce the fundamental right by filing a writ petition

before the High Court. So, in the absence of any such guide, the court might apply the
English certiorari concept of "person aggrieved".

(3.) Any person whose fundamental rights have been infracted will be at liberty to move the
Court. The fundamental rights of the Petitioner have been violated under Art. 14, Art.

19(1)(a), (b) and Art. 21 and is the person aggrieved in the instant. Also, under the legal
maxim audi alterem partem the Honble High Court has the jurisdiction of hearing and
deciding this matter as it concerns the issue of violation of fundamental rights. Consequently,
Durga Das Basu, Commentary on the Constitution of India (Nagpur: LexisNexis Butterworth Wadhwa, Vol. 6,
8th ed., 2012) p. 6719
2
Udai Bhan Singh v. State of U.P. & Ors., AIR 1974 All 202
3
Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property, AIR 1954 Madh B 173.
1

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it is submitted that a refusal to entertain the instant petition would be inconsistent with the
aforesaid obligation.

B. Writ petition is maintainable when there is infringement of fundamental rights

(4.) It is humbly submitted that the petitioner is entitled to relief because, the infringement
of fundamental rights, as conferred by the provisions of Part III of the Constitution, is
involved in this application. Hence a writ petition can be filed with respect to such

infringement. The action of the police who is an instrument of Petitioner4, is infringing the

rights of freedom of speech, peaceful assembly and life as enshrined by the Constitution
under Articles 19(1)(a), 19(1)(b) and 21 respectively. Further, there was also violation of
petitioner's Fundamental Right under Art. 14, caused by the misuse of power by the Police
Officials.

(5.) It is urged that the prohibitory orders are in total violation Art. 19 (1) (a)and (b) and the

same have been issued without any basis and thereby tantamount to abuse of the process of

the mandate contained in S. 144 of Cr.P.C. Freedom of speech, right to assemble and
demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic
system.5

(6.) Thus, imposing a prohibitory order under S. 144 of Cr.P.C amounts to gross violation of

fundamental rights of the Petitioners. Rather, the police should evolve a mechanism to ensure
law and order without infringing the fundamental right to Assembly and other basic rights
guaranteed by the Constitution.6

(7.) The Police Officials act of forcibly evicting sleeping people destroys the essence of
protection of life and personal liberty under Art. 21. Right to sleep forms an essential part of

Article 21 which guarantees protection of life and personal liberty to all. Hence as sleep

forms an essential part of living a peaceful life, it is a fundamental right. The term "life" as
enshrined in Art.21 of the Constitution has received very liberal interpretation at the hands of

the Supreme Court, where the Hon'ble Supreme Court has gone to the extent of declaring that

Alok Mittal & Ors. v. Government Of Haryana & Ors., 2008 (98) SLJ 369 CAT
In Re: Ramlila Maidan Incident Dt. 4/5. 06.2011 v. Home Secretary & Ors., (2012) 5 SCC 1
6
K. Thiagarajan @ Thozhar Thaigu v. The Commissioner Of Police, W.P No. 26930 of 2013
4
5

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even right to sleep is a fundamental right falling within the purview of Art. 21 of the
Constitution of India.7

(8.) It is humbly submitted that the action of the police officials was arbitrary and
unreasonable and thus violation of Art. 14 of the Constitution. The absence of arbitrary power
is the first essential of the rule of law upon which our whole constitutional system is

based. 8 In a system governed by rule of law, discretion, when conferred upon executive
authorities, must be confined within clearly defined limits. 9 Every state action must be

informed by reason and it follows that an act unimproved by reason is per se arbitrary.10 A
notice to evacuate given at around midnight cannot be said to be reasonable. Also, a sleeping
crowd cannot be a threat, so use of tear-gas and caning was totally arbitrary and

unreasonable. Therefore it is submitted that the police officials acted arbitrarily and the writ
remedy can be invoked.

C. The writ is independent of the existing alternative remedies

(9.) The existence of an alternative remedy does not operate as an absolute bar on the writ

court11 as it is a process that the court chooses to opt out of convenience and discretion12.
Under special circumstances the High Court may grant writ remedies to a Petitioner even
with the existence of an alternative remedy13.

(10.) Where public functionaries are involved and the matter relates to the violation of
Fundamental Rights or the enforcement of public duties, the remedy would still be available

under the Public Law notwithstanding that a suit could be filed for damages under Private

Law.14 Thus the existence of an alternative remedy is no ground for refusing writ, where
there has been a contravention of fundamental right.15

M. Kasirajan v. The District Collector, W.P.(MD) No.12973 of 2013

S. G. Jaisinghani v. Union Of India And Ors., AIR 1967 SC 1427
9
Ibid.
10
Bannari Amman Sugars Ltd. v. C.T.O., (2005) 6 SCC 625
11
Shivram Poddar v. ITO, AIR 1964 SC 1095; Also see JUSTICE B L HANSARIAS, WRIT JURSIDICTION
(3 ed. 2005).
12
JUSTICE B L HANSARIAS, WRIT JURSIDICTION (3 ed. 2005); Union of India v. Hidalco Industries
(2003) 5 SCC 194 (198); Union of India v. Bajaj Tempo Ltd., (1998) 9 SCC 281.
13
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 (11).
14
The Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors., (2000) 2 SCC 465
15
Himmatlal v. State of M.P., (1954) SCR 1122.
7
8

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(11.) Therefore, it is humbly submitted by the Petitioner, that the writ petition filed would be
maintainable.

II. THE POWER UNDER S. 144 OF CR.P.C HAS BEEN MISUSED

(12.) An order passed under S. 144 is administrative in nature and not judicial or quasi-

judicial, is amenable to writ jurisdiction under Art. 32 and 226 of the constitution, if it
violates fundamental right.16 The power under S.144 of Cr.P.C has been misused, as S. 144 of
CrPC applies to cases of imminent dangers [A]. Further, the use of police force amounts to
arbitrary action protected by Art. 14 of the Constitution [B] and there has been violation of
fundamental right under Art. 21 of the Constitution [C].

A. S. 144 of Crpc applies to cases of nuisance and apprehended dangers

(13.) The nuisance referred to is public nuisance, and the danger apprehended is disturbance

of public tranquillity, or riot, or affray.17 It is humbly submitted that the Petitioner sought
permission from the police authority for organizing a relay hunger strike and was thus

granted a conditional no objection certificate for the same. The relay hunger strike was to
bring to the attention of Petitioner, the regularization of 1500 ad-hoc teachers.

(14.) The provisions of S. 144, CrPC are meant to be used only in the grave circumstances

for maintenance of public place.18 The gist of the action under this section is the urgency of
the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences.

A mere statement by the Magistrate that he is satisfied that there is every possibility for

serious breach of peace between parties as well as public tranquillity is not sufficient to
exercise power under S. 144(1) and 144(2) CrPC.19

Gulam Abbas v. State of U.P., (1982) 1 SCC 71

Ratanlal & Dhirajlal, The Code of Criminal Procedure, (Nagpur: LexisNexis Butterworth Wadhwa, 19th ed.,
2010) p. 385.
18
Praveen Bhai Thogadia v. State of Karnataka, (2003) Kant LJ 48
19
Premodha Medhi v. Gauhati Roller Flour Mills Ltd., (2003) 1 Gau LR 205
16
17

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B. The use of police force amounts to arbitrary action protected by Art. 14 of the
constitution
(15.) The principle of reasonableness and rationality which is legally as well as

philosophically an essential element of equality or non-arbitrariness is projected by Art. 14

and it must characterize every State action, whether it be under authority of law or in exercise

of executive power without making of law. 20 The public functionaries should be duty
conscious rather power charged.21 Its actions and decisions which touch the common man

have to be tested on the touchstone of fairness and justice.22 That which is not fair and just is

unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. The
prohibitory order under S. 144 of CrPC does not in any way allow the police to enforce it in
an unreasonable manner. Their action is termed unreasonable as eviction orders at midnight,
when the crowd is sleeping and they are no threat, use of caning and tear gas on such crowd,

who is in a semi-conscious state, the police seems to have misused their power arbitrarily. It

would have been reasonable if the police ordered the crowd to vacate the place next morning
and if then the crowd was violent, then use force. In any country, especially a democracy, the

balancing of interests must be ensured and no organ of the state should have unlimited or
unguided powers. This is applicable equally to the public as well to the police. The police in

this case had discretionary and unguided powers which led to violation of fundamental right
of Petitioner. Discretion means sound discretion guided by law or governed by known
principles of rules, not by whim or fancy or caprice of the authority.23

C. There Has Been Violation of Fundamental Right Under Art. 21 Of The

Constitution
(16.) Article 21 can only be claimed when a person is deprived of his life or personal

liberty by the State as defined in Article 12. Under the canopy of Article 21 so many
rights have found shelter, growth and nourishment. Thus, the bare necessities, minimum and
Ramana Dayaram Shetty v. The International Airport Authority of India Ors. AIR 1979 SC 1628.
Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., (1992) SCR (1) 616
22
Ibid.
23
Som Raj v. State of Haryana, AIR 1990 SC 1176
20
21

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basic requirements that is essential and unavoidable for a person is the core concept of right

to life. Similarly, Sleep is essential for a human being to maintain the delicate balance of
health necessary for its very existence and survival. Sleep is, therefore, a fundamental and
basic requirement without which the existence of life itself would be in peril. A citizen has a
right to sound sleep because it is fundamental to life and falls within the purview of Art. 21.24

IV.

THE DEFENDANT IS LIABLE FOR THE COMPENSATION

(17.) The defendant is liable for compensation on grounds of violation of fundamental

rights. [A] Further, they are also liable under Art. 300(1) of the Indian constitution which
states the common law principle of vicarious liability. [B]

A. Compensation must be provided, if there is violation of fundamental rights

(18.) The seed of compensation for the infraction of the rights implicit in Article 21 was first

sowed in Khatri25, Sant Bir26 and Veena Sethi27, which sprouted with such a vigorous growth
that it finally enabled the Court to hold that the State is liable to pay compensation. This

dynamic move of the Supreme Court resulted in the emergence of compensatory

jurisprudence for the violation of right to personal liberty through Rudul Shah v. State of

Bihar 28 , which recognised the principle of monetary compensation for violation of

fundamental rights. In this case, the Petitioner's fundamental right is violated under freedom

of speech and expression enshrined in Art. 19 (1) (a) of Constitution, under freedom of

peaceful assembly without arms enshrined in Art. 19 (1) (b) of constitution, by arbitrary
action of police used unreasonably which is violative of Art. 14 of Constitution, under right
to sleep which is violative of Art. 21 enshrined in Constitution.

(19.) A claim in public law for compensation justifies award of monetary compensation for

contravention of fundamental rights guaranteed by the Constitution, when that is the only

Supra, Note 5.
Khatri v. State of Bihar, (1981) 1 SCC 627
26
Sant Bir v. State of Bihar, (1982) 3 SCC 131
27
Veena Sethi v. state of Bihar, (1982) 2 SCC 583
28
(1983) 4 SCC 141
24
25

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practicable mode of redress available for the contravention made by the State or its servants
in the purported exercise of their powers.29

B. The Petitioner is liable under the common law principle of vicarious liability
(20.) The legal basis of liability of the respondent comes under Art. 300(1) of the Indian
constitution. It provides a platform for state to sue or be sued as juristic personality. It is well

settled that ambit of Article 300 included tortious liability of State and its scope is not limited
to suit or right to one in respect of contractual liability only. The doctrine of vicarious

liability is a rule of responsibility by which the defendant will be found liable for the torts of

another, without proof of fault.30 The whole idea of vicarious liability of state is based on 3
principles, Respondent superior, Qui facit per alium facit per se and socialisation of
compensation.

(21.) It has been stated that there is no justification in principle or in public interest that the
state should not be held vicariously liable for tortious act of its servants. 31 The vicarious
liability of state is linked with the negligence of its officers.32 The courts now interpret the

constitutional provisions to recommend either an ex-gratia payment by the government or

payment of compensation to the victims suffering harm owing to the unlawful conduct of the
servants of the government in discharge of their functions, regardless of the sovereign nature

of those functions.33 In this case, when the defendant claim against petitioners, the doctrine of
contributory negligence, to an extent they admit, the negligence of police officials in taking
due care of petitioners. Thus, it is humbly submitted that the petitioner are liable for
compensation under the principle of vicarious liability.

(22.) The old distinction between sovereign and non-sovereign functions should no longer

be invoked to determine the liability of a state.34 The expression king can do wrong has now

been interpreted to mean that king has no legal power to do wrong. 35 The defence of
sovereign immunity which is implicit to Constitution of India Art. 300 (1) is inapplicable and

alien to the concept of guarantee of fundamental rights, therefore, there is no question of such
Nilabati Behera v State of Orissa & Ors., (1993) SCR (2) 581
Ken Oliphant, The Law of Tort, (LexisNexis Butterworths, 2nd ed., 2013) p. 87.
31
State of Rajasthan v. Vidhyawati, AIR 1962 SC 933
32
Halsbury's Laws of India, Administrative Law, LexisNexis Butterworths, Vol. 1, 2008, p. 005.227.
33
Halsbury's Laws of India, Tort, LexisNexis Butterworths, , Vol. 29(1), 2008, p. 127.
34
Dr. R. K. Bangia, Law of Torts, (Haryana: Allahabad Law Agency, 22nd ed., 2011) p. 65
35
A S Mittal v. State of Uttar pradesh, (1989) 3 SCC 223
29
30

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defence being available in a constitutional remedy. 36 Since, the petitioner's fundamental

rights were violated, the defence of sovereign immunity will therefore not apply in this case.

Consumer Education and Research Centre v. UOI, (1995) SCC 42

36

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PRAYER

In light of facts presented, questions raised, arguments advanced and authorities cited,
Counsels for the Petitioners most humbly pray before this Honble Court, to adjudge and
declare that:

1. The Petition Filed by the ABAPTA in this Hon'ble court is maintainable.

2. The Fundamental right of ABAPTA have been violated.
3. The power under S. 144 of CrPC has been misused.

The Petitioners thus prays for the following relief from the court:
1. Issue a writ of mandamus against the Government of Borissa.

2. Award compensation to ABAPTA as there has been gross violation of their legal and
fundamental rights.

The Court being satisfied, may also make any such order as it may deem fit in the light of
Justice, Equity and Good conscience.

And for this act of kindness the Petitioners shall as duty bound ever humbly pray.

Respectfully submitted,
Counsels Appearing for Petitioners

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